(concurring). This is an action to foreclose a mortgage for $4,000 and interest at 7 per cent from May 6, 1912. The plaintiff appeals from a judgment against him. The judgment is that the mortgage and the assignment of the same be canceled because there was no consideration for either the mortgage or the assignment, and because the latter was made by a feeble-minded person. The mortgage is made by defendant Sarah E. Blough to her incompetent son, to secure a promissory note to him of the same date for $4,000, and interest. The mortgage is on a good quarter section of land, which the incompetent conveyed to his mother without any consideration. She took the title to hold in trust for him, and unwisely made to him the $4,000 note and mortgage. The purpose was to show his interest in the land in case of her death.
The incompetent was doing janitor work in the national bank at *579Kenmare. He was a poor feeble-minded cripple, subject to fits, and for safe-keeping he deposited in the bank his good note and mortgage. The cashier looked at the same, and, forgetting two of the Ten Commandments, he coveted the security and contrived to get it for nothing. For a worthless equity in a quarter section of land way off in the hills of Mountrail county he induced the incompetent to transfer to him the good note and mortgage. The transfer was absolute, and as absolute owner the plaintiff brought this action to foreclose for $4,000, and interest and costs and statutory attorneys’ fees. Yet, it now appears that the transfer of the note and mortgage was merely collateral to a note for $900, and interest, which the cashier induced the incompetent to make for a quitclaim deed to the worthless equity in a quarter section mortgaged for about twice its value.
On the $900 note there was given a credit of $300 in lieu of a team of horses which was to go with the equity, but still the foreclosure suit was for a straight $4,000 and interest. It must have been brought with the hope of obtaining a default judgment against the simple-minded party, — poor business for a bank cashier to try in that way to get $5,000 from its simple-minded janitor. Truly, the transaction is on its face a gross fraud from the beginning to the end, including the attempted foreclosure. It is no way for bank cashiers to do business; it is a way for them to lose their reputation for honesty, good faith, and fairness. Good faith consists in an honest intention to abstain from taking an unconscientious advantage of another, even through the forms and technicalities of law. Even though the incompetent cripple were a person of sound mind and body, no court should sustain such a deal.
In any view of the case, it is free from all doubt; defendant has been caught with the goods; he has been caught trying to use the courts to obtain an unjust foreclosure judgment for over $5,000, with costs, and $135 attorneys’ fees. The cost of this action is no adequate penance.